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Health Bill

moved Amendment No. 19:"Page 3, line 4, leave out paragraph (b)." The noble Lord said: One feature of any Committee stage is that the shortest amendments always hide behind them or in them some of the key issues of a Bill, and that is the case with this amendment. It is primarily about membership clubs and reflects one of the major disappointments of the vacillation and change that took place on the government side in another place. I am going to use copious notes to assist me through this amendment because it is important that Members of the Committee understand the background to this situation and what we are really talking about. Many organisations and businesses are clubs. Some are proprietary membership clubs, run for profit by the owner or operator; others are what were previously called under the former licensing regime ““registered membership clubs”” and under the Licensing Act 2003 are now premises requiring a club premises certificate for the provision of alcohol or public entertainment. I shall give the figures for the number of premises licensed for the sale of alcohol for consumption on the premises prior to the coming into force of the Licensing Act 2003 last year. I shall deal only with England because apparently Wales is going to settle its own issues. I notice that the noble Baroness who was covering Wales on Thursday is probably unavoidably detained in Wales today. So I will stick to England, the figures for which are as follows: pubs, nightclubs, bars, wine bars and cafes, 75,972; restaurants, 19,910; residential hotels and so on, 3,686; combined residential premises and restaurants, 2,539; proprietary membership clubs of a commercial nature, 3,488; registered members’ clubs of a non-profit-making nature, 18,471; and theatres, 201. That gives a total of 124,267. Just over 12,000 on-licensed premises and registered members’ clubs also held public entertainment licences—or certificates of suitability, as they were called, for registered clubs—to enable them to obtain special hours certificates and sell alcohol up to 2 am or 3 am in the West End of London. Premises requiring a club premises certificate under the 2003 Act are probably best described as genuine membership clubs. Essentially, they are non-profit making organisations, run by the members for the benefit of the membership. Under their rules, there is accountability to the members of the club, who determine how the club is managed and operated. They are clubs that are quite separate and distinct from other licensed premises that may also be called ““clubs””, as is well recognised by the Licensing Act 2003. They are organisations whose members choose freely to associate with each other—indeed, some of them seem to treat the club as home from home—and they collectively set their own rules as to how the club operates. The relationship between the members and staff is generally very close and quite unlike that of a commercial operator. In character, the clubs span a wide range: from the Whites and Boodles of St James’s (neither of which am I a member of) to the many working men’s clubs (of which I was a long-term member until I lost my seat in Northampton in 1997), ex-servicemen’s clubs and other clubs countrywide. It is estimated that those clubs across the UK number some 20,000. They vary greatly in size—from clubs with just a few hundred or fewer members to those with several thousand members. I have carried out a little research. I inquired about the size of the average Conservative Club, where, as of last week, the average membership was 590. I attempted to find out figures from the working men’s clubs but I could ascertain only that they are bigger than the Conservative Clubs. However, it is probably not an exaggeration to say that we are talking about 10 million members. The figure might be 9 million or 11 million but my guess is that it is somewhere around 10 million. Some clubs are financially strong but many are not, not least because of the size of their membership. I think, in particular, of those in rural areas in my former constituency. The big ones close to the Saints rugby team are huge—they have thousands of members—but in some of the little villages such as Yardley or Harpole, the clubs are really quite small. None the less, they all have a great deal in common and play an important social role, wherever they may be. One thing that they have in common is that, in order to qualify for a club premises certificate, they must all comply with the stringent conditions laid down in the Licensing Act 2003. That Act recognises, as did the previous licensing regime, that they are quite distinct from other licensed premises."““The supply of alcohol by or on behalf of a club to, or to the order of, a member of the club””," is a licensable activity under the Licensing Act 2003, as are certain other qualifying club activities. Part 4 of the Act makes extensive provisions regarding the licensing of qualifying clubs. They require a club premises certificate, which relates to the premises occupied by and habitually used by the club, to certify that the club fulfils the conditions laid down in the Act—that is, the general conditions at Section 62 and additional conditions at Section 64. In the absence of any obligation to impose an absolute prohibition of smoking in order to protect non-smokers, it is for the members of a club with a club premises certificate to determine the smoking policy of the club. A very great many clubs already have smoking policies, either banning smoking or restricting smoking to designated rooms. That was confirmed by the Minister in another place in the Committee stage of the Bill. In their consultation during 2005 on the proposed smoke-free provisions of the Health Bill, the Government suggested that, in exempting clubs, the regulations made under the Bill might require an annual vote or ballot of the membership on the smoking policy of the club. That seems to me a perfectly sensible suggestion, and it is certainly one that I would support. Alas, it was not followed up, and it is relevant to ask: why not? It would seem that it was because of the opposition expressed by pub and bar owners and operators. Today, that sector is dominated by large companies that, frankly, are now run and regarded more as property companies than committed pub operators. Their objections were that exempting genuine membership clubs from the smoke-free provisions of the Bill would create an uneven playing field. That was also those companies’ objections to exempting licensed premises that did not serve food—then also a proposal of the Government. There is not a single organisation that represents the hospitality sector and, within and between the trade organisations representing those in licensed businesses, there were differences of views about the Government’s proposals. Often those differences lay between independent and corporate operators, and between small and large operators. None the less, the two principal criticisms most frequently made of the Government’s proposals at that time were that they were unworkable and anti-competitive. The proposals to exempt certain pubs were certainly not unworkable or impossible to implement. Indeed, one merit of the Government’s original proposals was their simplicity and the ease with which they could be implemented and enforced. The proposal that licensed premises that do not serve food would be able to choose whether or not to be smoke-free could not be easier to implement and enforce. There was absolute clarity in the proposals as to what class of clubs would be exempted from the smoke-free provisions of the Act, and that exemption could easily be implemented. There were two grounds for the accusation that the proposals were anti-competitive: that they would exempt membership clubs, which would then be at a competitive advantage vis-à-vis other licensed premises subject to the smoke-free provisions of the Bill; and that they would also create a non-level playing field between licensed premises that serve food and those that do not. This afternoon, we are concerned only with the proposal to exempt genuine membership clubs. The principal reason why they should be exempted is that they are, as the conditions of the Licensing Act recognise and lay down, distinct from pubs and bars and commercial for-profit operations. They are free associations of members, who, just as in other respects, should be able to determine their own rules regarding smoking. Is it not frankly astounding and hypocritical that health Ministers, who for so long argued for the exemption of genuine membership clubs from the smoke-free provisions of the Bill, should then be the very people who in the new Clause 3 prohibit the exemption of the clubs? Ministers cannot hide behind the free vote in the House of Commons. There were two votes on amendments: the first, to prohibit the exemption of any licensed premises or clubs; the second, to delete the prohibition in respect of clubs. A reading of those proceedings makes it abundantly clear how the occasion was managed, with health Ministers’ full support, to ensure that the second amendment failed. Yet, just a few weeks earlier in Committee in the Commons, the relevant Minister said:"““As for membership clubs, we believe that they should be able to choose whether to allow smoking or be smoke-free in recognition of the fact that they are private establishments run by the members for the members. Those clubs have always been treated differently from other licensed premises because they are non-profit-making organisations in which, ultimately, the members make the decisions””.—[Official Report, Commons Standing Committee E, 6/12/05; col. 74.]" However, now, as sure as day follows night, the Minister is going to say that continuing to permit genuine membership clubs to make their own rules on smoking could jeopardise the health of staff. That was not previously considered by Ministers to be a cause for concern—perhaps because they know that the risk to health has been very greatly exaggerated There are conditions that could, none the less, be included in regulations for the purpose of specifically protecting staff, and staff could not be required to work in a smoking area if they did not wish to do so. As we know, Part 1 represents a considerable infringement of liberty, for which I suggest that the Government may well have to pay a price. In my judgment, they would be misguided to compound their error by standing fast by the prohibition of a possible exemption from the smoke-free provisions for genuine membership clubs. In Committee last week it was confirmed by the Government that any votes in this House on matters on which there had been free votes in the other place would be free votes in this House. There was a free vote on the exemption of clubs and I trust that the same will happen at Report in this House. The House is surely entitled to express its own view at Report. If it differs from the other place, so be it. There is no sanctity about a free vote in the other place and it should not be a bar on this House taking a contrary view, if that turns out to be the case. I believe that the more because, in voting as did the other place on this matter, a decisive number of those on the Government side of the House voted against the very manifesto commitment on which they were elected. We heard about that on Thursday last. To add insult to injury, the votes in the other place were not even in accord with public opinion. The public has clearly shown that it wants more non-smoking accommodation, but not to the exclusion of facilities for smokers. Even if that choice is not going to be made generally available, free associations of people in membership clubs should continue to be able to make their own decisions and not have it forced upon them, just as they may individually decide about smoking in their own private space in the home. I beg to move.